The quandary of pro-life free speech: a lesson from the abolitionists.

REEXAMINING ROE v. WADE AFTER TWENTY-FIVE YEARS: AN OVERVIEW OF THE ROE QUANDARY

It has been a quarter-century since the revolutionary Supreme Court decisions in Roe v. Wade(1) and Doe v. Bolton.(2) It is time to consider what the Court hath wrought. After twenty-five years, we are in a position to see some of the consequences of Roe more clearly than before.(3) The effects of Roe upon American life and law were immediately dramatic and have been continuously profound, as this Article will demonstrate. None of the effects of Roe are more ominous or less noticed than efforts to suppress pro-life free speech(4) and the consequent moral dilemma into which the Supreme Court has slipped because of its abortion jurisprudence.(5) At the core of that quandary is a conflict of interest between, on one hand, the Court's (indeed, the judiciary's) unique role and responsibility to protect First Amendment freedoms, and, on the other hand, the Court's (and, generally, the entire federal judiciary's) unique possessory interest in protecting and preserving a preferred rule of constitutional interpretation which is its own creation and favored offspring.(6)

This Article reviews some of the major consequences of Roe for American law, our legal system, and also for our society. The primary focus is upon the growing threat to First Amendment values, the dwindling free speech rights of anti-abortion protesters, and a remarkably similar historical episode in which the free speech rights of an unpopular, agitating, moralistic minority were seriously restricted by the federal government and many states. That historical precedent was the widespread, vigorous effort to suppress abolitionist speech in the North as well as the South, especially in the twenty-five years before the Civil War.(7) The effort to suppress abolitionist speech ultimately helped to solidify and strengthen the First Amendment (and, incidentally, led to a devastating civil war, ultimately resulting in significant constitutional and political reforms as well) because Congress and the nation came to realize the tremendous importance of the freedom of political expression.(8) The thesis of this Article is that we face another crisis in the current history of the First Amendment like that presented by the efforts to suppress anti-slavery speech 150 years ago,(9) and that officials who control our legal institutions, especially our courts, need to take to heart the lessons from the abolitionists' experience about the crucial importance of protecting the rights of expression of unpopular political activists.

Part II of this Article reviews the Supreme Court decisions in Roe v. Wade(10) and Doe v. Bolton,(11) and describes some of the detrimental legal effects those decisions (both the decisions and the constitutional abortion doctrine they spawned) have had on our laws and legal system.(12) Among the deleterious effects mentioned are how Roe changed the substance of American constitutional law (in both doctrine and interpretation), how it altered the structure of our legal system (as to both federalism and separation of powers), and how it has undermined respect for the rule of law, the rule of reason, and legal ethics.

Part III focuses upon one particular legal side-effect of Roe that has been especially problematic in the 1990s--the epidemic of official efforts to restrict and suppress pro-life free speech.(13) This Part suggests that hostility to pro-life free speech is growing, and that efforts of public officials to curtail, impede, and punish antiabortion expression are increasing.(14) In many courts, both federal and state, there is a widening disparity in protection of the free-speech rights of anti-abortion protesters compared to other protesters expressing controversial speech.(15) This Part also examines the diminished protection afforded anti-abortion expression by the Supreme Court during the 1990s, and connects the Court's anemic record of protecting pro-life free speech to the moral quandary of the Supreme Court.(16) This Article suggests that the Court's failure to extend full First Amendment protection to pro-life expression is the tragic but natural consequence of a quarter-century of the unprincipled and corrosive Roe doctrine.(17) It is the inevitable result of a conflict between the Court's duty to protect anti-establishment speech and its interest in protecting its own darling Roe doctrine that is threatened by anti-abortion speech.(18)

Part IV reviews the remarkable history of similar efforts to suppress anti-slavery speech in the quarter-century before the Civil War.(19) Before the Civil War, abolitionists were very unpopular in both the North and South; they were considered, for the most part, to be religious zealots whose message was allegedly unconstitutional and undeniably incendiary, and who were criticized for trying to impose their moral views upon others in a way that was extremely disruptive to the nation.(20) The abolitionists' free speech rights, for a time, were severely curtailed under color of law by the highest legal bodies, but their long-suffering persistence laid the foundation for the emergence of an effective First Amendment and for one of the greatest moral, constitutional, and political reforms in our nation's history.(21)

Part V puts the previous sections into practical context by summarizing some of the nonlegal consequences of a quarter-century of Roe's doctrine of mandatory, legalized abortion-on-demand.(22) This Part points to the practical, real effects of the legal doctrines, including more abortions, stunningly multiplied repeat abortions, and the use of ghastly, inhumane abortion techniques, but little increased public support for Roe's rule of abortion-on-demand; a serious erosion of women's and family rights; and disintegration of ethics and diminution of quality-of-life.(23) This Part also suggests some relationships between some of the corrosive legal and nonlegal consequences of Roe.

Part VI concludes that the erosion of judicial protection of the rights of free speech of anti-abortion protesters presents an impending crisis.(24) The judiciary has particular responsibility for protecting First Amendment rights, including the right to criticize existing laws and official rules. It is also, in this instance, the institution that itself single-handedly created and has vigorously nurtured the controversial existing law (the "Roe doctrine") that pro-life activists seek to change. It has done this in the face of continuing contrary public opinion, by overriding the responsibility of the co-equal branches of the federal government and the historic, settled powers of the states. A dangerous judicial conflict of interest has arisen. It should come as no surprise that the Court has shown more concern for protecting its own illegitimate Roe rule than it has for protecting the First Amendment rights of pro-life protesters.(25) This Article calls upon the judiciary to be more faithful in protecting fully and equally pro-life free speech.(26) Returning to the analogy between current efforts to suppress pro-life free speech and efforts to suppress abolitionist speech 150 years ago, this Article concludes that efforts to suppress pro-life free speech today are likely to continue, perhaps even intensify, in the short run, but that they will ultimately fail and be repudiated both politically and morally, just as the efforts to suppress abolitionist speech failed and were repudiated.(27)

HOW ROE v. WADE HAS CHANGED AMERICAN LAW AND THE AMERICAN LEGAL SYSTEM

A. How It All Began: The Supreme Court Decisions in Roe and Doe Twenty-five Years Ago

In 1970, a pregnant unmarried woman filed a class action suit in federal district court in Dallas, Texas, seeking a declaratory judgment that Texas' criminal abortion laws were unconstitutional and an injunction against their enforcement.(28) The Texas criminal abortion laws at that time, as they had for more than a century,(29) prohibited abortion except when "'procured or attempted by medical advice for the purpose of saving the life of the mother.'"(30) A three-judge district court held that the abortion laws were unconstitutionally vague and overbroad, infringing "[t]he fundamental right of single women and married persons to choose whether to have children."(31) Both the defendant (Wade, the District Attorney) and the plaintiff (who filed suit under the pseudonym Roe) appealed to the Supreme Court of the United States.(32) The case was argued twice before the Court.(33)

On January 22, 1973, the Court announced its decision in Roe v. Wade,(34) affirming by an overwhelming 7-2 vote the district court's judgment on the merits and introducing the broad doctrine of abortion privacy into American constitutional law.(35) Writing for the majority, Justice Harry Blackmun began his fifty-four page opinion with a lengthy revisionist history of the regulation of abortion, attempting to prove that "the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage."(36) He also reviewed recent "privacy" decisions and declared that the fundamental "right of privacy ... is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."(37) Therefore, laws restricting abortion could only be upheld if necessary to effectuate a compelling state interest. He opined that prohibiting abortion is not necessary to protect maternal health until late in pregnancy because the risk of maternal morbidity from early abortions appeared to be lower than the risks of morbidity from childbirth.(38) The state's interest in protecting the right to life of persons did not justify abortion restrictions because the term "person" was used in several provisions of the Constitution to refer to already-born individuals.(39) The state's interest in protecting potential life was an insufficient justification for abortion restrictions because...